The Price of Employee Photographs
In California, employers’ use of employee’s photographs for marketing purposes such as on its Company website or promotional literature requires prior employee consent for each use, unless the employer meets very limited exceptions.
It is not just celebrities who may sue and recover for violations of the common law tort of misappropriation of their name or likeness. A little known statute, California Civil Code Section 3344, also known as California’s right of publicity law, provides a statutory remedy, for using a person’s photograph or likeness in advertising, without such person’s prior consent. Under Civ. Code Sec. 3344, any person who knowingly uses another’s name, voice, signature, photograph or likeness, in any manner, for the purpose of advertising, selling or soliciting its goods or services, without such person’s prior permission, is liable to that person for: (1) the greater of $750 or actual damages suffered by the person as a result of each unauthorized use, (2) any profits attributable to each unauthorized use, and (3) attorneys’ fees and costs, as the prevailing party. In addition, punitive damages may be awarded.
While “oops, I made a mistake” or “I did it inadvertently” is no defense when an employer uses employees’ photographs for marketing purposes, such as on a Company web site or in promotional literature, there are two potential defenses, both of which are fact-specific and difficult to prove.
First, where a photograph or likeness of an employee of the person using the photograph appearing in the advertisement or other publication is only “incidental, and not essential” to the purpose of the publication in which it appears, there shall arise a rebuttable presumption that the failure to obtain the consent of the employee was not a knowing use of the employee’s photograph. Where a Company is selling its experienced employees, it is unlikely that the use of the employee’s name or photograph was incidental to selling the Company’s services. Second, prior consent is not required for use of a name, voice, signature, photograph, or likeness “in connection with any news, public affairs, or sports broadcast or account, or any political campaign” which clearly does not apply where a Company uses employees’ photographs for marketing its products or services.
Compliance is Simple
The good news is that compliance is simple. Provide employees with a photo consent release upon hire and prior to each time an employee’s photograph, name, voice, or likeness will be used for marketing purposes. The release should outline how the photographs, name, voice and/or likeness will be used and any other applicable conditions for the employee to make an informed consensual decision. Consent must be voluntary and employers should make every effort to accommodate employees’ who decline to be photographed or decline consent. In addition, the release should address the terms and conditions upon which an employee may revoke consent, including, automatic termination upon cessation of employment.
For more information on employee photo consent or to schedule a workplace compliance audit, contact Lisa Sherman today at 213-341-4417.